Analysis Of Larrikin Music Publishing Pty Ltd V Emi Songs Australia Pty Limited

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Down Under - Where Judges Rule and Artists Blunder? An Analysis of Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited [2010] FCA 29

Tait Keller u3083442

I. INTRODUCTION/BACKGROUND TO THE CASE:

The Copyright Act 1968 (Cth) seeks to protect individuals who have created original literary, dramatic, musical and artistic works. Sections 14(1) and 36 provide that copyright is infringed when a person reproduces a substantial part of another’s work without the license of the owner of the copyright. In 2010 the Federal Court of Australia considered whether the flute riff in ‘Down Under’ a song by popular Australian group Men at Work was a substantial reproduction of the iconic children’s song ‘Kookaburra’ composed by Marion Sinclair. This case attracted significant media coverage and public interest.

On a 2007 broadcast of the popular music quiz show, Spicks ‘n Specks, contestants were asked to ‘name the Australian nursery rhyme this riff has been based on’. ‘Down Under’ was played. A contestant responded with ‘Kookaburra sitting in the old gum tree’. It was from this Larrikin Music Publishing Pty Ltd (‘Larrikin’) were alerted to the similarity between ‘Down Under’ and ‘Kookaburra’.

II. IDENTIFICATION OF WORKS:

‘Kookaburra’ is a four bar round that was composed by Marion Sinclair in 1934 for a competition held by the Girls Guides Association of Victoria. In Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited [2009] FCA 799 the Federal

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